Standing Committee A

[Mr. Roger Gale in the Chair]

Equality Bill [Lords]

Roger Gale: Good afternoon. I see that the Committee made rapid progress this morning.

Clause 51 - Public authorities: general

Dominic Grieve: I beg to move amendment No. 120, in clause 51, page 32, line 30, leave out paragraph (f).

Roger Gale: With this it will be convenient to discuss amendment No. 121, in clause 51, page 32, line 48, leave out paragraph (g).

Dominic Grieve: I welcome you back to the Chair, Mr. Gale. We have indeed made a lot of progress, and I am sure that we can make much more this afternoon.
The amendments deal with subsection (4)(f) and (g) on immigration rules and entry clearance. Although to stimulate debate I have proposed to leave out both paragraphs, I have different views about each. Paragraph (g) is utterly logical. We know that we have to admit people specifically to fulfil religious duties in Britain. That is an area of exception that has long existed. Judgments are bound to be made in respect of criteria pertaining to religion. 
However, paragraph (f) is a little more vague, and I would be grateful if the Minister explained why it is thought necessary to make the prohibition of discrimination on the grounds of religion apply to the immigration rules. One can of course think of occasions when one might wish to exclude somebody on the basis of their religion, but that will be not because of the religion itself but because of their behaviour. I wonder whether it is necessary for paragraph (f) to be phrased in such stark terms. Rather, could it not be restricted further? I wait to hear from the Minister about the Government's reasoning on that.

Evan Harris: Again, we are grateful to the hon. Gentleman for tabling these amendments so that we can have focused discussion on this part of the Bill. The clause represents a narrowing of the original terms of the Bill. That was achieved, with or without the Government's agreement at first sight, in the House of Lords. In respect of paragraph (g), I would make the same comments as the hon. Gentleman has just made.
However, there is a problem with paragraph (f). In human rights terms, the Government might be able to cite in any event an objective justification for taking action to deny someone the right to be here. That may well engage issues to do with the enjoyment of their private life which is effectively indirectly due to their religion. However, that would be subject to an objective justification. 
In respect of the discrimination measures, the Government must have some form of exemption, in case the concern is about not only the behaviour, but the presence in the UK. The test is not about behaviour in respect of the public good. It is that the exclusion or refusal of entry clearance would be conducive to the public good. 
It would be interesting to note to what extent the experiences of Reverend Moon required that sort of provision. I imagine that he was excluded not directly on the basis of his religion, but on the basis of something quite closely connected to it. Although the Government suffered a reversal in the courts, perhaps on a technicality, that example prompts questions about whether it would be fair for the Home Secretary to use such powers of exclusion and removal against people on the basis of religion, when, from that religion's point of view, that is done simply because its adherents are not understood or because its religious opponents—religions do have opponents—are besmirching them. Clearly, there is an appeal right, but it would be useful to hear from the Government how often it is anticipated this sort of exception would be engaged under the statute. 
Both the relevant paragraphs include, in brackets, the words 
''but this exception does not have effect in relation to harassment'',
and I am not sure whether those were deliberately left in, following the removal of harassment from the provisions, whether it is intended to tidy things up, or whether it is reasonable to keep the wording in any event. It might well be, but I should be grateful for clarification.

Paul Goggins: A warm welcome to you, Mr. Gale. Perhaps I should deal first with subsection (4)(g), because that seems to have struck a chord with the Committee and the hon. Member for Beaconsfield (Mr. Grieve) described it as utterly logical. Of course, the immigration service makes special arrangements for the admission to the United Kingdom of people, such as ministers of religion with particular religious functions, to assist religious communities that need access to such people. We need to be able to admit those people without acting unlawfully. I am pleased at the response of hon. Members of all parties.
Subsection (4)(f) would allow the immigration service to take entry decisions on the ground of public good where a person's religion or beliefs might be a part of the ground for the decision. In each and every case the decision would be an individual one about a specific applicant. There are, clearly, people whose religious views are so extreme that we would not want them to visit the United Kingdom to propagate them. The hon. Member for Oxford, West and Abingdon (Dr. Harris) mentioned the Reverend Moon. His exclusion was on the ground of public order. However, there may be individuals who apply to come to this country and who hold a particular religious belief—for example, that children should renounce their parents—that we find wholly  unacceptable, and do not want people to propagate in our communities. 
It is difficult to distinguish between holding that religious belief and giving effect to it. Clearly, in making a decision about an individual, the immigration service will want to take account of not just the person's religious belief but its potential impact on vulnerable young people. An exemption to allow the immigration service to act in that way seems fair. The threat that is posed may not be of the scale that we discussed in earlier deliberations, such as terrorism or other wider threats, but the protection of, particularly, the most vulnerable people in the community is important. The immigration service should have a mind to that when making decisions about individuals. 
I hope that the hon. Member for Beaconsfield will accept that those are reasonable grounds on which to provide an exemption. If so, he may consider withdrawing his amendment.

Dominic Grieve: The Minister makes a persuasive case. I hope that he will excuse my saying that it highlights a slight oddity that underlies the measure. I suspect that I shall, at the end of the day, be comfortable with it, but I think that the Committee should bear that in mind. We consider it acceptable for the state to lay down criteria by which it can deny access to the country to individuals whose views it considers not conducive to the public good. However, under the Bill we would deny individuals in Britain the right not to provide goods and services to people about whom they might hold exactly the same view.
I can make a distinction between those two concepts, but we should do well to have the issue in mind in Committee, because that is the reality of what we are doing. There is an argument, which was raised in another place, that we may be going too far—I now come back to my views about beliefs, which I raised with the Minister earlier—in extending the mantle of acceptability to other people's views, and that in doing so we may put an unwarranted burden on individuals. I have a residual anxiety about that. 
There is, however, logic in the Minister's position as to why he wants to refuse entry to the relevant people. Of course, that is open to challenge in the courts, and I dare say that it will be challenged. One of the probable grounds on which it will be challenged is the European convention on human rights freedom to practise a religion. 
I have no doubt that this area of the legislation is likely to be tested. I can well imagine that some individuals who are kept out—for good reasons, in my view—will say, ''The only basis on which you are keeping me out is my religious views, and that is discriminatory.'' It will then be for the Government's lawyers to argue that they are entitled to do so. In such circumstances, they may fall back on the argument that public order issues relating to such people warrant their exclusion. That is why I initially touched on whether we should focus on the public order element. 
I genuinely hope that subsection (4)(f) stands the test of being challenged in the courts. In view of what the Government are setting up in the rest of the Bill, I  suspect that it will come to be challenged, but that is not to say that I think that the Government are wrong.

Evan Harris: Surely that is the way for decisions not to be challenged on the ground of discrimination. I am not a lawyer or draftsman, but it seems to provide a specific exemption. There is a debate to be had about whether the human rights of someone outside the country in respect of exclusion can be heard by the European Court of Human Rights. Indeed, that was one of the issues in the Moon case and the court found that they were not. I would have thought that the provision dealt with the question of whether there has been unlawful discrimination—because it will not be unlawful.

Dominic Grieve: I do not share the hon. Gentleman's confidence. I would love to see the advice that the Government received, but I appreciate that I shall not. He advances a good argument, and it is possible that the Government will be successful, but I feel that they will be successful only if they are able to show that a public order issue warrants the discrimination that subsection (4)(f) allows them to practise.
Having conceded the principle of non-discrimination enshrined in the Bill, the Government may find themselves on more difficult ground in arguing to keep people out whose presence they think is not conducive to the public good. That is not to say that they will not succeed, but there are perfectly clear grounds on which an applicant could frame an argument. He could say, ''You are discriminating against me for coming into the United Kingdom and the only basis of that discrimination is in relation to religion.'' In view of the evolving nature of the law in that area, such an application might succeed. I hope that that does not happen, because I can think of a large number of people who ought to be kept out of the country whose views are particularly pernicious. I exaggerate when I say a large number, but I can certainly think of a few.

Evan Harris: I do not want to drag out the debate, but the Government have made it clear that the basis upon which they will decide whether to exclude or remove people because their presence is not conducive to the public good is not only public order or good relations with other countries; they will also consider the list of unacceptable behaviour consulted on and finalised in the summer. On Monday, however, that list was criticised by the Joint Committee on Human Rights, especially in respect of the provision whereby someone who is judged not to have glorified or encouraged terrorism but merely justified it could be removed or excluded. I bow to the hon. Gentleman's greater knowledge, but I think the action will be there rather than in the area of discrimination.

Dominic Grieve: The hon. Gentleman may be right, but my experience is that those who challenge Government decisions tend to load their shotgun with as many pellets as possible. It is highly likely that one of the pellets will be about the contrast between the requirement of a public authority not to discriminate and the exception in subsection (4)(f). It could be argued that although Parliament has expressly provided that exception, clause 51 generally prohibits discrimination in the widest possible terms. I am sure  that the hon. Gentleman can see the incompatibility between those two provisions. Somebody will then argue that we should consult the European convention on human rights, and that the provision is not ECHR-compliant. That is what I apprehend may happen.
One's position is arguably weakened by the fact that the general prohibition has been spelt out so clearly and that that contrast has been included. The Government will argue that the measure is reasonable and proportionate—the classic words used in such cases. We should have in mind that the provision is a major exception, when subsection (4)(g) seems innocuous and exceptions can be allowed. I say to the Minister genuinely that I wish the Government well with the provision. I wait with interest to see what happens, and on that basis I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn. 
Amendments made: No. 16, in clause 51, page 32, leave out line 47. 
No. 17, in clause 51, page 33, leave out line 11. 
No. 18, in clause 51, page 33, leave out line 14. 
No. 19, in clause 51, page 33, line 17, leave out 
'(but this exception does not have effect in relation to harassment)'.—[Paul Goggins.]

Dominic Grieve: I beg to move amendment No. 138, in clause 51, page 33, line 41, at end insert—
'(n) action in relation to— 
(i) acts of worship or other religious observance organised by, or on behalf of, any public authority, 
(ii) the maintenance of places of worship or of any chattels, furnishing or equipment for religious worship or instruction on behalf of any public authority, or 
(iii) the payment of any person for the purpose of facilitating acts of religious worship.'.

Roger Gale: With this it will be convenient to discuss new clause 13—Protection of Christian heritage—
'Nothing in this part shall require 
(a) the removal of any copy of the Bible, 
(b) the removal of any cross or other Christian symbol, 
(c) the removal of any Communion table, 
(d) the ending of Christian prayers, 
(e) any restriction on the celebrations of Christmas, Easter or any Christian festival, 
(f) the withdrawal of funding from a Christian organisation, 
(g) a religious organisation in receipt of funding to change or cease any practice relating to its religion or belief as a condition of the funding.'.

Dominic Grieve: We now come to one of the Bill's more important issues that we must consider. The matter has certainly given rise to much anxiety. It may be possible for the Minister to allay that anxiety during the sitting; it may be, of course, that some members of the Committee will consider that there is no anxiety to be allayed, and that they shall want to take the thrust of clause 51 to its logical conclusion, which is, effectively, the secularisation of public authorities. 
The amendment and the new clause try to provide a foundation for a debate about the issue. I shall try to explain the concern. New clause 13 is substantially lifted from an amendment proposed by the Christian Institute. It is concerned that applied to a public authority, clause 51 would involve a public authority removing any connection it might have with the Christian religion. Amendment No. 138 seeks to address that anxiety by providing for a specific exception towards the end of the clause, after subsection (4)(m). 
Why is the anxiety present, and will the Government provide reassurance? The Minister will agree that we must accept that a feature of this country is its long Christian past. Although there are other, minority religions, some of which feature prominently today and have featured consistently for the past 300 years, their minority status has nevertheless been accepted. It has often been accepted and, indeed, enshrined by the special position given to the Church of England in our constitutional arrangements, that the country has a Christian foundation. That is reflected by the census, which shows that although many people do not practise their religion very much, upwards of 70 per cent. consider themselves Christian. 
As a consequence, many institutions in Britain are suffused with recognition of their Christian heritage—not only organisations that have an overtly religious purpose. I am satisfied that those organisations and educational establishments have been provided by the Government with adequate protection in the Bill. I am more troubled about institutions that might qualify as public authorities but which, while fulfilling largely secular functions, including the provision of services to people on a completely equal basis, nevertheless contain recognition of their Christian heritage, which manifests itself from time to time. Let me give an example. 
I mentioned earlier that I am a member of an inn of court—I am a bencher of the Middle Temple. That is not an overtly religious foundation, although its symbol, the lamb and flag, undoubtedly has a Christian derivation and represents an element of Christian symbolism. The inn, however, although it looks after students, grants scholarships and provides facilities without any religious discrimination of any kind, also celebrates the Christian deity and provides support for the Christian religion. It does that through grace before meals and, more pertinently, by providing support and subsidy to a church, the Temple Church. That might come out of separate funds; I have not researched the matter. It is clear that it does not do the same thing for Jews, Muslims, Hindus or anybody else, although, doubtless, if a Jewish, Hindu or Muslim organisation wanted to book a room for something with a religious aspect to it, there would be no problem about their doing that. 
The question that arises, therefore, is whether anything in clause 51 makes that impossible. Having read and re-read the clause, I was left with a doubt in my mind as to whether there might be a problem. I am aware that when this was debated in the other place, it was looked at specifically in the context of harassment. Because the harassment clause has gone—properly, in  my view—some of the mischief has disappeared with it. 
The obvious anxiety that was manifest and, indeed, debated in the other place was that somebody would come along and say, ''I, as somebody of another faith, find the saying of grace before the meal in the hall of the Middle Temple in some way harassing or offensive.'' The disappearance of the harassment clause removes that limb. However, it could be argued that, in providing part of the service of the inn, although the question remains whether it is a public service or can be distinguished from it, the inn would in some way be discriminating. 
An inn of court is a good example, because it is a body that has functions that I can think of as ''public authority functions'' as well as other functions. Other examples might include a corporation such as the City of London. That undoubtedly celebrates its Christian heritage. I do not know how that is manifest in funding terms, but the Lord Mayor has a close connection with the church of St. Lawrence Jewry and there is, again, a lot of Christian symbolism enmeshed in the corporate structure. Other local authorities have civic services. When I was a councillor, not only did we have a civic service once a year, but, every second year, I think, we went to the local synagogue. Such things evolve of themselves, and I have no doubt that corporations now make visits to local mosques and Hindu temples. 
All those things are done on what I would call a basis of natural progress, not on the basis of somebody coming along and saying, ''I have a right here; what you are doing is discriminatory.'' I cannot think of anything more likely to bring this legislation into disrepute than if we end up with a challenge to the way in which public authorities conduct their normal routine and engage at the same time in a celebration of the deity—a Christian deity, in all likelihood. They may suddenly find themselves hauled over the hot coals. Unfortunately, as the Minister will be aware, there is plenty of evidence of public authorities behaving in a, frankly, barmy fashion in response to pressure from various minority groups. 
That has been fairly well documented. The examples range from public authorities being told that they cannot replace an antique statue of a wild boar in a public park because it has some offensive quality for a minority religion, to a public authority allegedly saying—although I do not know whether this is true—that its employees cannot have piggy banks in their office desks. I think that particular public authority was a Conservative one. These things are troubling, because they suggest that people wish to pick quarrels on matters of the utmost triviality, and offend people in doing it. Since those things are not fanciful, it is important to get the legislation right. I am mindful that there is an exception at subsection (4)(k), but I shall give way to the hon. Gentleman before I discuss it.

Evan Harris: As the hon. Gentleman said, this was more of an issue while the harassment provisions were in the Bill. I would not want it to be felt that those of us who were concerned about the measure were against harassment provisions being brought in. It  was because the definition of harassment included such terms as violation of dignity and creating an offensive environment. People with strong religious views will often claim that. I know that he recognises that there is no right not to be offended. That was the real problem, which I suspect is lessened under the current framing of the Bill.

Dominic Grieve: I am grateful to the hon. Gentleman. I agree, and I was using the word ''harassment'' in its generic legal sense. Nobody wants people to be harassed, yet the reality of the Bill's wording—before that particular clause was wiped out in the other place—was that harassment had a broad definition and it could easily have been used as a pretext for bringing complaints.
The logical extension of the harassment clause, as it stood, was that total secularisation had to take place. One only has to look around to see the damaging consequences that that would have for the majority religion in this country. What would also be really damaging is that the entire structure of the Bill, which I support in its broad terms, would be destroyed. Public support for it would disappear, so we have to get it right. 
I said a moment ago that paragraph (k) provides for some exceptions, particularly in respect of educational institutions: 
''acts of worship or other religious observance organised by or on behalf of an educational institution (whether or not forming part of the curriculum)''.
The problem is that large numbers of public authorities are not educational institutions. I question whether the Middle Temple, my inn, is an educational institution. It may arguably be so; that may be its let-out clause. But it still remains problematic, and I remain anxious about it. I want to listen to what the Minister has to say on the matter. 
While the harassment clause has gone, and some of the more extreme examples with it, I remain concerned that it could still be argued that a public authority is behaving in a discriminatory way because the benefits it provides could be argued to include the opportunity of religious observance in a corporate framework. If that religious observance were being offered in a way that favoured only one faith, it would be said that it could not do so in those circumstances. 
The Christian Institute was also anxious, as the Minister is aware, that the measure could affect the decisions of public authorities, such as hospitals, to provide a Bible in the drawer by the bed or to have a chapel on the premises. Again, these institutions are not overtly religious, although many have religious origins. Nevertheless, they have accumulated a spiritual dimension over the years that reflects the mainstream majority religion in this country. 
This is an important issue. I am fairly certain that the Government do not intend the result of the provision to be the disappearance of Bibles from bedsides in hospitals, the closure of hospital chapels, corporations prevented from having annual civic services or public authorities prevented from saying grace before meals at corporate functions. As I am sure that that is the case, I need to know, and the  Government need to persuade me and perhaps others, that that cannot happen under the Bill as it is drafted. At the moment, there is scope under the Bill to argue that it should happen. Even the process of a legal challenge in such circumstances troubles me because of the impact that it would have on the credibility of the legislation. I look forward to hearing from the Minister on that point.

Evan Harris: I rise briefly to stress the point that I made earlier that most of the concern related to the fact that the initial definition of harassment in the Bill was so wide that it almost invited people to take legal action, if they so wished, and possibly to succeed in doing so.
I hope that the discrimination law review will consider more carefully a definition of harassment that gives people scope to express themselves, even at the risk, within reason, of offending other people. It should be made clear that simply doing something that another person considers to be an affront to their dignity should not be sufficient to be considered unlawful. No one wants inter-religious strife, but it is probably better to allow freedom of expression than to stifle it either deliberately or inadvertently through such a wide statute. 
The hon. Gentleman's amendments would, however, have a greater effect than the effect that he has just described. He tabled new clause 13, but did not speak to it. I wonder whether that is because he recognises that it is not wholly satisfactory as it singles out certain religious symbols of one religion.

Dominic Grieve: I explained that new clause 13 was the Christian Institute's draft. It is an important draft, because it immediately brings to the attention of the Committee the sorts of areas that are causing the institute particular concern. Amendment No. 138, which I drafted, would cover all those points adequately and in rather more neutral language. It is not necessary for Parliament to legislate in rich language; in fact, it can do so in simple terms. That is why I drafted the amendment as well as tabling new clause 13.

Evan Harris: I certainly commend the hon. Gentleman on his drafting. Amendment No. 138 is clearly better than new clause 13, and I accept his point that he spoke to amendment No. 138 for that reason. New clause 13, as drafted by the Christian Institute, shows the sorts of sensitivities involved, but it is a self-defeating argument. The institute clearly has strongly held views and sincere reasons for putting those points, including the fear that minority religions will call for the removal of the things that they find offensive.
The hon. Gentleman makes valid points about his amendments. The Minister knows that I generally speak from a non-religious point of view. Does the Minister think that, if a local authority decided to spend public money on bringing in a religious person to lead prayers at the beginning of every meeting, it would be satisfactory if staff and members of the  council, trying to discharge their public function from their preferred place, were let into a room only if they were of the right religion or willing to sit through a religious service in a local authority meeting? 
I am prepared to say that I would not want us to go any further than we already do in some legislatures in this country in respect of making specific provision for the booking of seats on the basis of participating in or sitting through a religious service. Indeed, I might argue, although not now in this Committee, that we should draw back from that. I hope that the Minister will be robust enough to say that there is a limit on what public authorities can do in respect of getting into specific single religious issues. Clearly, multi-faith forums and provisions particularly for the Christian heritage of the country, as the hon. Member for Beaconsfield puts it, are reasonable so long as they do not disadvantage individuals and subject them, to use the Minister's term on another part of the Bill, to a detriment. A person can choose not to take the Bible from a hospital drawer. They can also choose to take it. There is no way, in my view, that that could be considered as discrimination, far less harassment on any reasonable definition of harassment. 
I would like to give some encouragement to the Government in making it clear that public authorities, particularly when spending public money performing a public function, should be careful that they are not causing a detriment to people on the basis of their religion. That leaves a lot of scope for cultural activity, some of which will relate to a faith or be multi-faith, but also indicates the point beyond which it would be considered not reasonable to go. I look forward to the Minister's response to the debate.

Paul Goggins: I shall deal with amendment No. 138 and new clause 13. First, it might be helpful if I respond to some of the general points that have been made, not least by the hon. Member for Beaconsfield, because it is important for hon. Members to have constant regard to what is happening on this issue, as on many others, in the communities that we represent. A number of things are happening and they are interrelated.
Surveys of people's adherence to particular religious beliefs and institutions show that such adherence remains at a very high level. The vast majority of people in this country regard themselves as members of a particular religion or faith community. At the same time, as the hon. Gentleman is right to point out, we live in an increasingly secularised society, so despite the high level of adherence to formal religion, there is an ongoing process of secularisation. An increasing number of people identify themselves in terms of their religious belief and religious community. The fact that we are debating part 2 of the Bill reflects that and the need to protect people from discrimination on those grounds. All three elements run together and there is an interplay between them. We need to have regard to that. 
What comes out of the debates that ensue from that is sometimes not helped by the misinformed reporting of some stories that we see constantly dripping through the media. One of the latest examples was the rumour put around in various newspapers that the  Home Office had withdrawn funding for a carol service at St. Martin-in-the-Fields for crime victims. That story was complete nonsense. There was never a proposal to withdraw funding, but of course the Home Office wanted to be sure about the range of victims of crime who were being invited to that event order to ensure that everyone was sufficiently and properly engaged. 
Such stories play into potential prejudice and the lack of information, which does not help. Our responsibility here is to clarify the issues wherever we can. It is important to recognise the need to ensure that public authorities can support the religious needs and wants of the people whom they serve, in a way that balances protection for people of other beliefs as well. We do not seek to prevent local authorities or any other public authorities from being involved in carol services, celebrations of Diwali or other religious activities in which they feel it is right for them to be involved. The hon. Member for Beaconsfield pointed out that these things evolve over time and that there is now a broader range of religious faiths and activities than perhaps was the case in the past. We do not think that this part of the Bill stands in any way against that trend. We feel it is right—this is in some measure a response to the hon. Member for Oxford, West and Abingdon—that public authorities should treat people of all faiths and none fairly. That is the limit that I would place on this. 
Whether amendment No. 138 is better than new clause 13 is a matter for members of the Committee to judge for themselves. I believe that it tips the balance unfairly. It would have the effect of allowing a public authority to support one religion by organising worship and maintaining places of worship, while refusing, under any circumstances, to do the same for others. There should be chapels in our crematoriums, hospitals and elsewhere and they should be properly maintained for those who wish to use them. We believe that the authorities providing such facilities should be reasonably flexible to the needs of those who need and want to use them.

Dominic Grieve: It is a bit harsh to say amendment No. 138 would almost encourage discrimination. Just as in other clauses that provide exceptions—we discussed the security services, who will not take it as a blank cheque to go out and practise discrimination—the removal of these functions of a public authority from the clause is not designed to present a blank cheque to do the same. It is simply that this is the only mechanism apparently available in the Bill to remove the possible impact of the duty under subsection (1). The problem is not the exception, but whether that subsection prevents those things from happening.

Paul Goggins: I apologise to the hon. Gentleman if he feels that I am being unduly harsh. My argument is with the way in which the provision would make a preference for one religion that must be provided for, without making provisions for other religious beliefs. I say it slightly more gently: he has tipped the balance a little too far in amendment No. 138. Others would argue that he tips it severely in new clause 13.

Dominic Grieve: The Minister will know that one of the distinctions between new clause 13 and amendment  No. 138 is that amendment No. 138 is faith neutral. The phrase ''the Christian religion'' does not feature in it. The amendment simply says that subject to the other duties on the public authority, the three possible provisions allow a public authority latitude and discretion to support a particular faith and possibly even several faiths if it wanted to do so. The amendment says, however, that the authority cannot be challenged just because it decides to sponsor an act of worship or religious observance organised on its behalf.

Paul Goggins: I simply say again gently to the hon. Gentleman that his amendment No. 138 sets in stone rather too severely the ability of a public authority to support and encourage particular religions and religious beliefs and not to respond to others. Our argument here is that public authorities have a duty to respond to the various needs of the religious beliefs of the communities that they serve. Just because a public authority provides a chapel or a service for one community, does not mean that it has to provide that service for all religious beliefs and all religious communities. It may not be necessary in a particular locality for that service to be provided. But it is perfectly in order for such provision as is deemed suitable and appropriate to be made. There is a balance to be struck and that is what we seek to uphold.

Dominic Grieve: I am grateful to hear the Minister say that. That is exactly what I thought he would say, and exactly what I want to hear him say. I have to contrast that comment about what a public authority can do with the plain terms of the clause. By saying that it cannot discriminate, subsection (1) seems to me to lay itself open to the possibility of a challenge, because somebody can say, ''You are a public authority and you support an annual Christian civic service. I am a Muslim and I object to that.'' What happens then? Perhaps the Minister will take the Committee through what happens next when that challenge is raised. I think that he is saying that the public authority could argue, ''Our decision is reasonable and proportionate in all the circumstances,'' but that involves a public authority in potential litigation from which I believe that it is entitled to be protected.

Paul Goggins: Careful judgments must be made. Public authorities should have proper processes for deliberating on such matters: they must gather information and then make decisions. It is perfectly reasonable for a public authority to have differential provision for different faith communities, if that provision can be justified by reference to matters other than the religion or the belief. If the individual Muslim to whom the hon. Gentleman referred is the only person of that religious persuasion in a particular community, it might be disproportionate to expect the public authority to make the same provision for him as for vast numbers of people elsewhere. Public authorities cannot be expected to provide the same level of support and service to everybody, irrespective of financial and other considerations. The differentiation there is not on grounds of religion or  belief, but on other rational decisions about resources and what is proportionate in the circumstances.
I understand some of the nervousness and concern, and to some degree share it, but I hope that the guidance that we produce will clarify many of these matters, so that we can bust some of the myths that have grown up. 
I say clearly and categorically that I am a Christian. I celebrate this country's Christian heritage, but the best way to protect that heritage is not to seek to give greater protection in law to the beliefs of Christians than to those of others. New clause 13 is not necessary, because what it addresses is not and should not be a problem. Bibles and other Christian symbols need not be removed, as people fear they will be. Public authorities must respond to the needs of the religious communities that they serve. Community relations could be damaged if we singled out the Christian faith for added protection. It might appear that we were afraid that religious symbols might be banned by the Bill, and that we wanted to protect Christian symbols alone. We do not want to do that. Equally, we do not want Christian symbols to be thrown out and disregarded, when many consider them to be important. 
For the second time in today's deliberations, the hon. Gentleman has treated us to accounts of events at the inn of court of which he is a member. He sought some clarification, and I hope that I can help him. The inn of court would be a public authority only when carrying out functions of a public nature. Therefore, it is not in itself a public authority. Those running the inn of court would be discriminating only if they refused to provide public functions for a person because of that person's religion; refusal would be clear discrimination. It would be indirect discrimination only if, for example, they insisted on people saying grace before they received the public function. I hope that that helps to clarify the position for the hon. Gentleman. 
I acknowledge that we need clarity, and I hope that the Bill will help to provide that. I hope that the guidance will help to enhance our understanding and that the rational and reasonable discussion and reporting of these matters will reflect a proper balance. Saying grace is one thing; compulsory baptism for all service users would be something else entirely. We must have an understanding— 
Dr. Harris rose—

Paul Goggins: The hon. Gentleman has a habit of knowing when I have only three words left to say.

Evan Harris: I do not want to delay the debate by making a separate contribution, so I will limit my remarks to a few seconds. Where would the Minister say provision by a legislative authority to give preference in seating locally to those who participate in some way in a religious service would fall? Would it be on the compulsory baptism side or on the side of what he described as harmless? People may have to deal with such issues every day; indeed, members of the Committee themselves may have to do so. Surely  on such difficult issues the Minister should be able to give us an idea of where the Bill will leave those distinctions.

Paul Goggins: I shall certainly not recite the list of examples this afternoon, much as the hon. Gentleman may wish me to. It will be necessary to use common sense and to understand the local context—the people involved, the nature of the communities being served and so on. Those things will matter and will require mature, sensible judgment. There is no one-size-fits-all formula that we can deploy in every circumstance. We need proper respect for all faith communities and a realisation that public authorities must respond to their needs as best they can.
I suspect that the amendments play on unfounded fears. This has been a good debate, and I think that some of the fears of the hon. Member for Beaconsfield will have been allayed. I hope that he feels able to withdraw the amendment.

Dominic Grieve: I am grateful to the Minister, who has gone a considerable distance towards allaying the fears. I tabled new clause 13 precisely because I was conscious that others have greater fears than I do and feel strongly on the issue. Therefore, I wanted to make sure that the matter could be fully and properly debated in Committee.
The Minister provided considerable reassurance, but I remain troubled. We must face the fact that we live in a litigious age. People's tendency to use the courts to assert rights, often in perfectly trivial matters, appears to be a growth industry. Once one provides an opportunity for that to happen, experience suggests that people come along with agendas of their own and seek to prevail. We are living in a society that in many respects is in rapid transition, and there seems to be a willingness to use the courts and to behave in a rather un-neighbourly and unnecessary way to assert rights. 
Therefore, I do not entirely share the Minister's confidence. In fairness, I think that he accepted that one consequence of the Bill may be that legal challenges will be made. We shall have to rely on the common sense of the judiciary to ensure at an early stage, as has happened before, that unreasonable challenges are thrown out of court so that a reasonable and happy mean is maintained. 
I have some anxieties, because I believe that the Government may have to face the consequence that if institutions that are essentially non-denominational or non-religious in nature but maintain elements of Christian heritage begin to feel threatened, some of them may decide to convert themselves into more overtly religious organisations. There is an issue here, as we try to find the happy mean that enables people to live together in harmony. As a lawyer I have to say that, on the whole, harmony does not come through the courts. I try to dissuade people from litigating, and I am sure that other members of the Committee with a legal background will agree. It is a weapon of last resort, not of first resort. I have an anxiety that the provision will give rise to unnecessary litigation. I understand the Government's position, which is not unreasonable, but if the provision is used in that way, we shall have cause to regret it. 
I shall consider the matter, and if I can come back on Report with something that might be helpful to maintain the thrust of what the Government are trying to achieve and to provide a safety net of sanity, I shall return to it. For the moment, I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 122, in clause 51, page 34, line 7, leave out paragraph (c).

Roger Gale: With this it will be convenient to discuss the following amendments:
No. 123, in clause 51, page 34, line 9, leave out paragraph (d). 
No. 124, in clause 51, page 34, line 11, leave out paragraph (e).

Dominic Grieve: I was so absorbed in the last debate that for one moment I half forgot what the next one was going to be. With these amendments I simply seek clarification. Clause 51(6) is quite complicated, but if I understand it correctly, it provides circumstances in which clause 69(4)
''shall not apply in relation to a reply, or a failure to reply, to a question in connection with an alleged contravention of this section''.
Paragraphs (a), (b) and (c) are about people's legal rights, and I have no great difficulty with them. However, paragraphs (d) and (e) are slightly more complicated, because they specify that exceptions may exist so that an organisation will not be required to give a reply to an allegation of discrimination, 
''(d) where the reply is given in circumstances specified for the purposes of this paragraph by order of the Secretary of State, or 
(e) where the failure occurs in circumstances specified for the purposes of this paragraph by order of the Secretary of State.''
That is a let-out clause, which in certain circumstances allows the Secretary of State to protect public authorities from compliance with clause 69, which, as I mentioned, is about the provision of information, usually as a prelude to litigation. I should like to know from the Minister why those two paragraphs are there, why the Government think that exception necessary, and how it will be exercised.

Paul Goggins: I hope that I can reassure the hon. Gentleman. We want to see requests for information by people who believe that they have been the victims of unlawful discrimination to be acted upon as speedily as possible. If somebody sets out to frustrate the pursuit of requests for information in those circumstances, or to avoid providing the information, that would be a serious matter.
Mr. Grieve rose—

Paul Goggins: I have already excited the hon. Gentleman.

Dominic Grieve: I only wanted to say that I mistakenly referred only to paragraphs (d) and (e), but I also have an amendment referring to paragraph (c), which says:
''where the reply is of a kind specified for the purposes of this paragraph by order of the Secretary of State''.
They are all in the same generic group, but I wanted to get that on the record.

Paul Goggins: I am grateful to the hon. Gentleman for clarifying that point. I should like to underline my opening remark—that we want people who believe that they have been discriminated against, and who need information, to get it as speedily as possible. It would be wrong for anybody to stand in the way of that without justification.
The provisions enable the Secretary of State, who has the duties, to set out on what forms and in what manner questions should be asked, to specify a form that may be used for replies, and to specify circumstances in which inferences of discriminatory conduct should not be drawn from a failure to use properly the arrangements that he has made. We are talking here about a practicality. For example, if an inquiry is sent to the wrong person, the court should not be able to infer that discrimination has occurred simply because the request has gone to the wrong person, so there has been a delay in the reply. I hope that the hon. Gentleman appreciates that. Sometimes poor administration will be to blame. Although poor administration is to be deprecated and dealt with, it should not be left to a court to assume that discrimination has occurred just because of it. That is what the provisions are about. This is not a get-out clause, but it means that discrimination cannot be assumed if poor administration is the real culprit.

Dominic Grieve: I am grateful to the Minister for his reply. Bureaucracies are always—dare I say it?—good at protecting themselves, and this seems to be another example of that. I have to accept that bureaucracies do not necessarily function at 100 per cent., so the Minister may have a good argument. However, it is slightly telling of the Government's lack of confidence that they are going to be told to comply with their own regulatory framework. I would prefer it if those provisions were not in the Bill at all, but I shall go away and reflect on what the Minister has said. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Roger Gale: The hon. Member for Oxford, West and Abingdon has indicated that he wishes to raise a particular issue, which is also covered by new clause 16. It is appropriate for the matter to be raised under this clause, but the hon. Gentleman will appreciate that I do not expect a repetition of the arguments should we reach new clause 16.
Question proposed, That the clause, as amended, stand part of the Bill.

Evan Harris: Thank you, Mr. Gale. I was aware of the fact that the matter was covered in two different places, having discussed it with the Clerk. Indeed, I had vaguely hoped and/or expected that the new clause might have been taken under this clause or an earlier one that dealt with school transport, but for reasons that I never understand because it is beyond my capacity to do so, the grouping was set out as it has been. As we always say, I am sure that that was the correct decision.
I shall not dwell on the issue of guidance because the new clause refers to the need for guidance to be  issued, but I draw the Minister's attention to school transport, which is mentioned in this clause and a previous one. The Minister will be aware that the issue of school transport and the related exemption is found in subsection (4)(k)(v). The prohibition on a public authority exercising a function to carry out any act that constitutes discrimination does not apply to action in relation to transport to or from an educational institution, which is also dealt with under clause 50(2)(b) concerning the exercise of an authority's functions in relation to transport. 
I am not arguing that schools that may choose pupils on the basis of their parents' religious adherence should not arrange transport when they are beyond where those pupils would usually go to school. I am not arguing that that is wrong. My point is that the process should be exercised fairly and in a non-discriminatory way with regard to all people who find that because there is discrimination in admissions on the basis of religion—or a lack of it—they are faced with extra journeys. One would have thought that this matter was straightforward. The Bill should treat equally anyone who, on the basis of their parents' belief or faith or lack of either, has to go further than is indicated to get to school because the school nearest to them—in the range that they would not qualify for subsidised transport—is of the wrong faith or no faith. That is not a difficult concept for the Bill, the guidance—to which I shall come on another occasion—or the explanatory notes to specify. 
The failure of the explanatory notes to make that absolutely clear is remarkable. This is evident in, for example, paragraph 186 of the explanatory notes, dealing with clause 50, and paragraph 192, which refers to clause 51. I shall refer to the latter, but they are pretty much identical. It states: 
''Transport—an LEA or other responsible body can arrange transport to a faith school for those pupils who live a distance away and they will not be obliged by this legislation to provide a similar service for pupils at another faith or non-faith school.''
Heaven help the parent with no religious belief, an atheist or humanist, who does not want their child to go to the local faith-based school and wants their child to participate in the subsidised or free transport scheme made available—allegedly in a non-discriminatory way—for children to travel further than the distance they would normally because of faith-based discrimination in admissions. That may not happen frequently; non-religious parents might not avail themselves of the freedom not to have their child educated in a faith school as frequently as parents with religious views chose not to have their child educated at a school that does not have a faith ethos or discriminate for admissions on grounds of faith. Nevertheless, we know that it happens. Evidence was given to the Education and Skills Committee when it considered the draft School Transport Bill that suggested that that was a problem. 
I will not go into the Committee's conclusions because they relate mainly to guidance, but it agreed that there was an issue. It was well identified that the problem was not only that children of non-religious  parents, who wanted to get on the bus that passed them for the same price as the children of religious parents, were not allowed to do so without paying to go a similar distance in the same direction, but that in many cases the local authority at no point—I would be interested to find a local authority that did—told such parents that they were entitled to ask for and receive subsidised transport, if they qualified on the basis of a belief that was not religious. The test should be the same. If there is a test for genuineness of religious belief and the allocation of transport, there should be some test for genuineness of non-religious belief. In neither case is it a particularly difficult test to pass. I do not see why people should have to go out of their way as a religious parent does not to prove their atheism. As long as the tests are equal, that should apply. 
Part of the problem stems from the original legislation. The law on school transport is contained in the Education Act 1996. Section 509(4) states that when LEAs are considering whether or not to make discretionary transport arrangements in relation to a particular person, they are required, among other things, to have regard to 
''any wish of his parent for him to be provided with education at a school or institution in which the religious education provided is that of the religion or denomination to which his parent adheres.''
That should be read in a non-discriminatory way and the same should apply to non-religious parents. Although the wording of the Bill should be clear, the fact that the explanatory notes encourage local education authorities to apply the provision in a discriminatory way is extremely disappointing. 
I hope that the Minister will recognise that if local education authorities continue to fail to let people know that they can access such transport and to deny subsidised transport to children who are going further than usual in order to avoid a faith school at the wish of their parents, there will be human rights challenges. Legal action has been taken, as the Minister knows. If we have an opportunity to debate guidance, I shall go into that in more detail. 
I hope that I have made the point as clearly and politely as I can. I feel strongly about it, because I have had representations from people I know who feel that as the explanatory notes make such an error, if it is an error—and if it is not, it is even worse to feed such discriminatory practice—LEAs will continue as they are doing and we will not make progress. The Bill is an opportunity to sort that out once and for all, if we are to have the sort of education system where schools can choose on the basis of religion. I hope that the Minister can give me some encouragement in words and action as to how we will deal with the problem.

Paul Goggins: I shall be as encouraging as I possibly can. The hon. Gentleman has been threatening us with the subject of school transport on and off throughout the course of our deliberations today, so I am pleased that he has had the opportunity to get it off his chest.
Local education authorities have a statutory requirement to provide free home-to-school transport for certain pupils. They also have some scope to decide when transport is necessary in other circumstances.  They will consider each pupil's case on its merits, taking account of all the relevant factors, which will include a parent's wish for their child to attend a school of the religion or denomination to which they adhere. That discretion means that local education authorities often provide subsidised transport for pupils of faith schools that are located outside the local area. The Bill contains an exemption to ensure that that practice can continue, otherwise local education authorities would be vulnerable to challenge on transport policies that take into account the historical distribution of religious schools, which were often built outside town centres. 
Local education authorities may also—in our view they should—provide subsidised transport to a non-faith school for children whose parents are strongly opposed to their attending a faith school that happens to be closer to home. That would also be unlawful if it were not for the exception in the Bill. The exceptions need to be there in order to enable local education authorities to continue to operate such policies. I do not know whether that is helpful to the hon. Gentleman, but that is what we seek to achieve. Those who choose to travel further to go to faith schools should be able to do so, and those who wish to go to a non-faith school because the nearest school has a faith dimension or an ethos to which they do not want to adhere should be able to travel there too. It is important to enable local education authorities, which are responsible for such policies and their implementation, to exercise their functions properly.

Evan Harris: We are in complete agreement on the Minister's last paragraph. I would not argue, and have not proposed an amendment, to remove that provision. I understand that it is needed to avoid challenge. However, even in the explanation that he has given, the Minister has unnecessarily separated a school pertaining to the religion or denomination of the parent. When he says that, why can he not also say ''or lack of it, or philosophical belief'' so that it is clear in everything that he says that the provision should be exercised in a way that does not discriminate between faith and non-faith?

Paul Goggins: The hon. Gentleman is right. The measure should operate in a non-discriminatory way. I regret it if my remarks were not as comprehensive as they should have been—the provision applies equally in the way that he has indicated. It is important that local education authorities should be able to continue to exercise their function properly in that respect. It is too late to consider the explanatory notes; they have nearly served their purpose. However, we will make such issues abundantly clear in any guidance that we issue with the legislation.

Evan Harris: Does the Minister believe that there is a problem with the explanatory notes? If he does, I will be more relieved and more reassured. If he thinks that those notes, which mention only arranging transport to a faith school, are correct and capture the idea of non-discrimination, I cannot be reassured; there is still some distance between us. If he would comment on whether the explanatory notes are in error, that would be helpful for those who later read this debate.  Otherwise, they might look only at the explanatory notes.

Paul Goggins: I need to come back to the hon. Gentleman on the accuracy of the explanatory notes. I have tried to make it clear that a family that has chosen a school that is at a distance from home because of a particular religious belief should be able to be supported by a local education authority, just as should a family that does not wish to go to a religious school that happens to be the closest to home because of the ethos of that school. I have been as clear as I can.
Ours is an even-handed approach and I believe that it is right. In the end, it is for local education authorities to carry it through. We cannot and should not pass legislation that would oblige local education authorities to follow a discriminatory course. We have to include exceptions that enable such authorities to function properly. If I can ensure that the guidance that ensues from this legislation is clear, I shall seek to do so.

Evan Harris: I thank the Minister for his remarks. He has a reputation for going as far as he can to meet hon. Members' concerns during the Committee stages of Bills, and he has done so here.
I should like to make two points. I hope that we will have the opportunity to return to the question of guidance under another clause and that the Minister and his staff will have had time to look at the issue to see whether he can offer us something. In particular, I flag up the recommendations of the Joint Committee on Human Rights and the Education and Skills Committee regarding the validity of the current guidance. 
Secondly, I have had a message from the experts on this issue, who tell me that had I tabled an amendment to remove school transport, we could probably have dealt in this debate with the issue of guidance raised by my new clause. To be true to my view, however, I did not group those provisions together and I apologise for the fact that we will have to revisit the issue. In the light of the Minister's comments, however, I hope that when we do so, we will be briefer than we might otherwise have been.

Roger Gale: I am sure that we will be.
Question put and agreed to. 
Clause 51, as amended, ordered to stand part of the Bill.

Clause 52 - Discriminatory practices

Dominic Grieve: I beg to move amendment No. 125, in clause 52, page 34, line 36, leave out 'be likely to'.

Roger Gale: With this it will be convenient to discuss amendment No. 126, in clause 52, page 34, line 38, leave out subsection (2).

Dominic Grieve: Subsection (1) of the clause says:
''It is unlawful for a person to operate a practice which would be likely to result in unlawful discrimination if applied to persons of any religion or belief.''
Subsection (2) says: 
''It is unlawful for a person to adopt or maintain a practice or arrangement in accordance with which in certain circumstances a practice would be operated in contravention of subsection (1).''
I have tabled two probing amendments, one to each subsection. The first inquires as to the use of the word ''likely'' in subsection (1)—the Minister and I seem to bandy the word about quite frequently. I seek clarification on whether taking it out would make a huge difference; otherwise, I do not object to subsection (1). 
I have slightly greater reservations about subsection (2). I appreciate that it might be useful for the commission to take pre-emptive action, and that is what subsection (1) is about. However, subsection (2) takes matters a stage further, because it would allow the commission to interfere in respect of a 
''practice or arrangement . . . which in certain circumstances . . . would be operated in contravention of subsection (1).''
That is a pretty sweeping power. In our courts, generally speaking, we give people remedies when something happens; we do not give massive powers to launch speculative pre-emptive strikes. I therefore wonder whether subsection (2) is necessary for the proper enforcement of this part of the Bill.

Paul Goggins: Although this also relates to other aspects of the Bill, it is worth saying that the discrimination law review will consider many of the issues on which we are touching and we need to set our remarks in that context.
The Government tabled amendments in the other place to bring the clause more closely into line with the equivalent provisions in other discrimination law, including the Race Relations Act 1976 and the Sex Discrimination Act 1975, by restricting its application to practices that would be likely to result in indirect discrimination. We should pay tribute to the work done by colleagues on all sides in another place to improve the Bill in that regard. 
The intention of the discriminatory practices provision is to enable the Commission for Equality and Human Rights to prevent unlawful discrimination by bringing proceedings in situations where no actual complaint has yet been received, but where unlawful behaviour might occur if such practices continue. Of course, we hope that the commission, through its advocacy and proactive work, will seek to persuade those who might adopt such practices that they are heading down the wrong track and need to mend their ways. Amendment No. 126 would remove that ability entirely. 
Amendment No. 125 would allow proceedings to be brought only when the CEHR could show that unlawful discrimination would definitely occur as a result of the practice concerned, and not when it was only likely to occur. If a person could show that discrimination would definitely occur, then by the time that action was brought, the discrimination would probably have occurred. The person would then have a real case, and would not need to take the preventive approach that we are providing under the provision. 
In deliberations with the hon. Gentleman on other Bills, I have learned a lot about the word ''likely''; I understand that it means ''probable'' in legal terms, but even so, it does not mean ''definite''. It is important that we retain the power in the provisions.

Dominic Grieve: It is noteworthy that, in subsection (2), ''likely'' has not been used. The Government have not suggested that the CEHR should be able to intervene when it thinks that someone is adopting or maintaining
''a practice or arrangement in accordance with which in certain circumstances a practice would be''
likely to be 
''operated in contravention of subsection (1).''
There was clearly hesitation about extending the meaning to ''probable'' in that case. There has to be certainty. That is one reason why I thought it right to seek to amend subsection (1). Would the Minister like to comment on that?

Paul Goggins: Perhaps the best thing to say is ''Good spot!''. Clearly, I shall have to consider the hon. Gentleman's remarks on whether the word ''likely'' should occur elsewhere. If it does, I shall need to table an amendment. I hope that that will not be necessary, but as he raises the matter, I will consider it further.

Dominic Grieve: As I indicated, these are probing amendments. I am grateful to the Minister for his reply, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 52 ordered to stand part of the Bill. 
Clause 53 ordered to stand part of the Bill.

Clause 54 - Instructing or causing discrimination

Dominic Grieve: I beg to move amendment No. 127, in clause 54, page 35, line 27, leave out subsection (3).
I have nothing against the clause, but is there a difference between causing and inducing someone to do something? In fact, I probably made a mistake in my amendment: if any subsection needs to be deleted, it is subsection (2), because I think that inducing encompasses causing, although it is just arguable that causing does not encompass inducing. Whichever way round it is, I should be jolly grateful if the Minister would tell me why both subsections (2) and (3) are thought necessary. There is perhaps a certain amount of overkill here. If a person induces, or attempts to induce, someone to do something, they are causing, or attempting to cause, someone to do something.

Paul Goggins: I look forward to further discussions about amendments that have not been tabled. It might help if I set out briefly what subsections (1), (2) and (3) cover.
Clearly, it is wrong to instruct someone to do an unlawful act—I do not think that anyone disputes that—and that is covered by subsection (1). It is also clearly wrong to cause someone to do an unlawful act; that, we believe, requires a significant degree of influence. It is clearly wrong for people to influence  others in that way. That is covered by subsection (2). We say that persuading a person to do an unlawful act, even when one has no power to cause them to do so, is wrong, too. The distinctive aspect of subsection (3) is that it deals with the fact that a person need not have the power to make discrimination happen in order to encourage it. We should not allow people to encourage unlawful behaviour. 
The hon. Gentleman may feel that we have gone in for overkill, but I think that we are making sure that every angle of the issue is covered. I would have thought that he would be enthusiastic to make sure that there were no loopholes through which people could wriggle. The provision is genuinely an attempt to eliminate the possibility of people influencing others to do unlawful things. Through the three measures that I have just set out, we seek to cover each and every angle, so that no one can escape the law.

Dominic Grieve: I am grateful to the Minister for his response. I can understand his reasoning, but I did not infer that ''cause'' required the exercise of a power to make something happen. The Minister confirms what I already thought: that inducing encompasses causing. To that extent, what I said originally was right. The phrase
''it is unlawful for a person to induce''
would also cover subsection (2). While I am a great believer in keeping legislation short—the Bill runs to 82 pages—and the impact of the provision might be sufficiently marginal for us not to worry about it. I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn. 
Clause 54 ordered to stand part of the Bill. 
Clause 55 ordered to stand part of the Bill.

Clause 56 - Organisations relating to religion or belief

Evan Harris: I beg to move amendment No. 40, in clause 56, page 36, line 41, leave out 'imposed' and insert 'reasonably justified'.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 41, in clause 57, page 37, line 10, leave out 'imposed' and insert 'reasonably justified'.
No. 42, in clause 58, page 37, line 28, leave out 'imposed' and insert 'reasonably justified'.

Evan Harris: This is an important group of amendments because it goes into the test that needs to be applied to whether continued discrimination—discrimination after the Bill is enacted—will be considered legitimate. The matter was debated only briefly in the House of Lords because of time constraints. The amendments would amend not only clause 56, but clauses 57 and 58, which set out the circumstances in which religious organisations, charities and educational institutions are permitted to restrict their services or activities on the basis of religion or belief.
Obviously, some exceptions from the ban on discrimination are necessary, but it is important that they are not too widely drawn otherwise we would  achieve very little. The Minister will be aware that previous versions of the Bill required a restriction to be imposed because it was necessary. That provision was then broadened to a restriction being imposed because it was expedient. Religious organisations objected to ''necessary'' because it seemed to be a solely objective test. Other organisations, such as the British Humanist Association, objected to ''expedient'' because it was too wide. Clearly, expediency is a huge catch-all, and I agree that such a subjective test would be outrageous because it would enable anything to continue. 
I read in the Lords Hansard that even a bishop agreed that ''expedient'' was too wide a description. The Government have gone further than was necessary to meet the concerns expressed by religious and faith communities that they could not continue to discriminate in the way that they would want. That is not the first time that the Government have gone too far. 
The current Bill has dropped any such test. Clause 56 states that 
''subsections (3) and (4) permit a restriction only if imposed . . . by reason of or on the grounds of the purpose of the organisation, or . . . in order to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.''
In the other place, Baroness Whitaker proposed amendments similar to mine to replace ''imposed'' by ''reasonably justified''. I hope that the Government agree that ''reasonably justified'' is weaker than ''necessary''. 
Baroness Scotland defended the original wording and said that it 
''requires that there must be causal connection between the purposes of the organisation and the restriction. It does not, however, go so far as to require that the restriction is necessary. This test is well balanced between the strict necessity and expedience, but should be easily understood by the courts. The words proposed by my noble friend . . . would provide a test which would be less easy to apply. For that reason the wording providing by the draftsman is, in our respectful view, to be preferred.—[Official Report, House of Lords, 9 November 2005; Vol. 675, c. 676.]
I question, however, whether the word ''imposed'' is a test of reasonable justification. 
I do not believe that the provision is well balanced between strict necessity and expedience, and neither does the British Humanist Association, which briefed me on this. The problem is exacerbated by ''on the grounds of'' in subsection (5)(a). Who decides what the grounds are? That will be highly subjective, and if a religious organisation claims that its purpose is based on those grounds, there is no test of reasonable justification to decide the matter. 
In human rights terms, there must be objective justification for continued discrimination, and I fear that the wording in the parts of the legislation dealing with discrimination is inconsistent with what was accepted as a reasonable basis for statute in the Human Rights Act 1998, which provided that there needs to be objective justification of a potential breach of article 14 in relation to the enjoyment of other convention rights. 
Subsection (5)(b) is also very weak. It says that 
''subsections (3) and (4) permit a restriction only if imposed . . . in order to avoid causing offence, on the grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.''
I remember debates with, I think, another Minister on the Employment Equality (Sexual Orientation) Regulations 2003 when a late exemption was added, which was contentious enough in itself, which talked about avoiding 
''conflicting with the strongly held religious convictions of a significant number of the religion's followers''.
I shall talk about that when I speak to the next group of amendments. The question is whether the test is well balanced without the wording being tightened up in subsection (5)(a) or (b). I do not believe that it is, and I urge the Minister to reconsider it. 
We should also consider the contrast between this provision and the positive action taken under race relations legislation to promote the interests of under-privileged people, which most members of the Committee would want, which had to be objectively proven. That was a far greater test than the continued negative discrimination for which this provision allows. On that basis, the current test should be tightened if we are to have a sensible, well balanced anti-discrimination statute, and I urge the Government to tighten it. 
Baroness Scotland said in the House of Lords that she believed that the test of reasonable justification would be less easy to apply, but under clause 56 religious and other organisations are required only to state their body's purpose and to say that the restriction or discrimination was imposed on that basis. That is not a test at all. It simply allows for religious organisations to make their defence in whatever way they like without any objective justification. 
I understand that the Government have tried to move from expediency to this provision, and I am grateful that they have gone that far, but there must be a more effective objective judgment. The term ''reasonably justify'' is not a new concept for courts to have to apply. The whole basis of the need to justify things objectively is well known, and a reasonable justification cannot be seen to be a whole new area of jurisprudence. As a test, it is reasonably justified, and I commend it to the Committee.

Paul Goggins: Once again, we are discussing where precisely to draw the line in exemptions. Some have argued from time to time during the passage of the Bill that it is drawn too narrowly or too widely. I am, however, slightly confused by the hon. Gentleman's comments because he has given the impression that a massive debate has been raging in another place, which has spilled over to our deliberations. That is not my understanding. He quoted my right hon. and noble Friend Baroness Scotland, who said in Committee that exceptions must be based on something between necessity and expedience. She paid tribute to the draftsmen who produced amendments to reflect that judgment. When those amendments were considered in another place, Lord Bishop of Chelmsford spoke  warmly in endorsement of the Minister's comments, and the hon. Gentleman's colleague Lord Lester of Herne Hill said:
''My Lords, I echo that remark and pay tribute to the draftsman and to the Government. This is a suitable way of meeting the points which were raised and I am grateful.''—[Official Report, House of Lords, 19 October 2005; Vol. 674, c. 861.]
It appears that, through a careful process of discussion, consideration and further drafting, the House of Lords Committee arrived at a form of words that was acceptable to all parties. We have benefited enormously from that work because they provided us with a form of words that works well. 
The hon. Member for Oxford, West and Abingdon argues in favour of reasonable justification. My concern, among others, is that that would place an undue burden on religious and other organisations that are, necessarily, very small. Those organisations often provide, for example, luncheon clubs, sports groups and other low-key, local, but important services, particularly on occasions such as Christmas or Easter. Many of those organisations do not have formal constitutions, and it is right that they should be able to continue their engagement and involvement with the community without having to worry about restricting their membership to people of the same belief or having to open their activities to all. That is why a definition somewhere between necessity and expedience is one that respects the legislation and the need to tackle discrimination. 
This is an area of considerable debate and concern, but there is a growing consensus on the right words. I hope that the hon. Gentleman can confirm that that consensus has been reached in another place. If he is having difficulties, I can provide him with the page number.

Evan Harris: I am very keen. I knew that I had it, and the Minister could see me hunting through Lords Hansard, which is a pleasure not to be enjoyed at this time of day. Baroness Whittaker moved amendment No. 35, which stated:
''leave out 'imposed', and insert 'reasonably justified'''.—[Official Report, House of Lords, 9 November 2005; Vol. 675, c. 675.]
Subsequently, Lord Lester of Herne Hill, whom the Minister quoted in support of the Government's position, said, ''I support the amendment.'' There was not the consensus on this matter that the Minister claims. While everyone agreed that the form of words in the Bill was better than ''expedient'', many, including my noble Friend, believed that there was a better way forward.

Paul Goggins: I am grateful to the hon. Gentleman for his contribution to the debate. He holds his views strongly and sincerely. I am the first to acknowledge the assistance that I receive from others, not least those who are in this Room. The hon. Gentleman quoted from column 675. Perhaps I could gently point him to column 861, which reports a subsequent debate when a consensus was found on this matter. I hope that the hon. Gentleman will be reassured that that consensus was reached among the three main parties during their discussions. That is Parliament at its best: arriving at something that is both principled and practical. The work that took place in the House of  Lords, of which we are the beneficiaries, gives us the best possible settlement on this matter.

Evan Harris: I am afraid that the Minister has got the order mixed up. The column to which he referred, from which he correctly quoted Lord Lester's complimenting the draftsmen—as it is polite to do in any event—was from Report stage. The column from which I quoted was on Third Reading. Even in the House of Lords, the order is: Report; Third Reading. As the Minister rightly states, ''expedient'' was found to be not expedient, and therefore another word—''imposed''—was imposed. That was welcomed and, furthermore, there was broad support, not necessarily from the Government, for a new test.
The Minister's answer does not address this significant problem. I would be grateful if he intervened on me to deal with it. How does he justify the fact that the current wording allows a religious organisation to discriminate, not in the way that he provides for, which would be easily covered by the wording that I am suggesting—lunch clubs would be reasonably justified—but against people to whom, for example, they do not want to rent their premises because, as they say, the purpose of their religion is to discriminate against and make life difficult for people of other religions? 
To a certain extent, faith is like that. People believe that their religious convictions are right. One hopes that they will be polite about it, but they do not have to be if they believe something strongly and also believe that everyone else, almost by definition, has chosen the wrong path. It is reasonable to discriminate if the purpose of an organisation is to promote one religion over another. I believe that it is not the Minister's intention to allow such discrimination, but I do not understand how his wording, even if it is an improvement on ''expedient'', will prevent organisations that do not have to from discriminating on the grounds that they give. 
The Minister is not indicating that he wants to give me any comfort on this point. I do not know whether it is because he cannot, as he realises that religions will state that that is their purpose.

Paul Goggins: I will happily intervene on the hon. Gentleman if he insists. I have done my best to give as full an account as I can of how opinion coalesced in the other place to the point of providing us with the form of words of which we are the beneficiaries. He may wish to consult further on what actually took place, but I say with some confidence that what happened is what I described as happening.
As this is an intervention, I do not wish to go on too long. There must be a causal link, not a spurious one, between the two provisions—that is the point. The legislation must be practical, bearing it in mind how small many of the organisations are, and that we do not wish to overburden them. The principle of the legislation and bearing down on discrimination are, of course, important, but we do not want to strangulate organisations that play a purposeful and important role in many of our communities.

Evan Harris: I am not going to pursue the argument further—nor ought I. I am grateful that the Minister at  least recognises that he cannot defend what I consider to be too wide a get-out by saying that the matter was agreed in the House of Lords. On that basis, we might as well not turn up here, although I do not suggest that too loudly.
I see the Minister's point about the organisations being small, and I guess we shall have to look and see. We may well seek to come back to the issue at a later date. I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn.

Roger Gale: Before we proceed, I should say that I have been told that there will shortly be a Division in the House; I offer that thought.

Evan Harris: I beg to move amendment No. 43, in clause 56, page 36, line 43, leave out paragraph (b) and insert—
'(b) in order to avoid conflict with the strongly held religious convictions or beliefs of a significant number of persons of the religion or belief to which the organisation relates.'.

Roger Gale: With this it will be convenient to discuss the following amendments:
No. 157, in clause 56, page 36, line 43, after 'causing', insert 'serious'. 
No. 44, in clause 58, page 37, line 30, leave out paragraph (b) and insert— 
'(b) in order to avoid conflict with the strongly held religious convictions or beliefs of a significant number of persons of the religion or belief to which the institution relates.'. 
No. 158, in clause 58, page 37, line 30, after 'causing', insert 'serious'.

Evan Harris: I can be brief, because my amendment relates to an issue similar to the one just discussed. It queries why the test in the subsection (5)(b) arm of the exemptions is not even as strong as that in the contentious provision in the measure on employment. As I said earlier, that related to the giving of offence to religious organisations with strongly held views and a significant number of members. I come back to my earlier point: without that test, it will be relatively easy for organisations to state, ''This causes offence'' without needing to show that there has been offence to a significant number of people or that the offence is significant.
The paragraph (b) arm of the exemptions allows the organisations to which the clauses apply to write their own exemption simply on the basis of what they say, because offence is a subjective issue. Some of their members might say that they would be offended if people who were not religious followers were able to rent their organisation's premises because such people might do something vicious to sacrosanct or hallowed ground. I do not know what the issues would be, but we know that there is the potential for such problems. I hope that the Minister can justify why he did not use the form of words that were found to be just about acceptable on judicial review in respect of the regulations on employment and sexual orientation, from which I quoted earlier. 
Sitting suspended for a Division in the House. 
On resuming—

Roger Gale: Before we proceed, the hon. Member for Beaconsfield has told me that he would be comfortable debating amendments Nos. 128 and 129 with this group. I have agreed and the Minister has agreed to that arrangement, because it may facilitate matters, as the debates are rather similar.

Dominic Grieve: I am grateful for that, Mr. Gale, as it was apparent that amendment No. 43 touched on the same part of the clause. The hon. Member for Oxford, West and Abingdon was concerned that the expression
''in order to avoid causing offence''
was too wide and would give religious organisations too great an opportunity to behave in an unreasonable manner. 
I have a separate anxiety about that expression. It seems to me that the use of the words 
''in order to avoid causing offence''
could favour religious organisations or religions that made the most noise. Therefore, the religion that argued most vociferously that offence would be caused would be able to claim the benefit of the exemption and the religion with an underpinning of tolerance could be disadvantaged because somebody might say, ''Your members are not offended by these things. Therefore, we can impose on you something that you are not comfortable with.'' 
I disagree with the hon. Gentleman. It seems to me to be an area where Parliament strays dangerously. The truth is that what people decide concerns them as a matter of conscience can be unreasonable, and it may seem to an outsider that that is not a reason for preventing them from operating a restriction. The purpose of the clause is to provide protection to organisations that have a religion or belief. 
I prefer either amendment No. 128, which I tabled, which would remove the expression 
''in order to avoid causing offence''
and substitute 
''comply with the principles and practice''
of a religion, or the alternative that I inserted in amendment No. 129, which is 
''conform to the religion or belief of''.
I should be grateful if the Minister would respond to that. My concern here is that it is not just because something is offensive that people should be able to claim that they do not want it. They should, in the context of a religion, be able to claim that they do not want it because what is being demanded of them does not conform with their principles and practices. The use of ''offensive'' seems to favour those who make the most fuss, and that is not how the provision should work in practice. 
I make one other point in passing. Subsection (4) says: 
''Nothing in this Part shall make it unlawful for a minister''.
Should it not specify that it is a minister of religion? While I know that Ministers of the Crown have their ''M'' spelt with a capital letter in the arcane mysteries  of drafting, it was not immediately apparent to me when I read the subsection what sort of minister was being referred to.

Roger Gale: I call the Minister of the Crown.

Paul Goggins: With a capital ''M''. Again we are considering where the line should be drawn at which faith groups and religious organisations should be able to claim an exemption. We believe that it is now drawn in the right place, but clearly hon. Members wish to test that further.
I should perhaps illustrate my argument with an example showing why we believe that ''causing offence'' is the right expression. The example is letting a church hall. Under the clause, if a church wanted to refuse to hire out its hall to satanists, it would have to show that doing so would cause offence to Christians. That is a simple and clear test. Immediately the hon. Member for Oxford, West and Abingdon wishes to change the definition in the amendments that he has tabled, he adds complexity to it in three ways. 
First, under his test the church would have to show that hiring the hall would conflict with Christian beliefs. Our courts are wonderful institutions, but they are not necessarily geared up to becoming theological institutions. However, they would have to become so to determine whether there was a conflict with Christian beliefs. They would have to understand those beliefs and how they were affronted by hiring the hall to a satanist group.

Evan Harris: Why are the Minister and his colleagues content to force courts to make that judgment about the employment, equality, sexual orientation and, if I remember correctly, religion regulations that state inter alia or in part that discrimination in employment is justified by organised religions or religious organisations to
''avoid conflicting with the strongly held religious convictions with a significant number of the religion's followers''?
The courts already have to deal with that, because of statute. If the Minister is saying that it is a new problem, it is not. The provision applies equally to other legislation.

Paul Goggins: I shall think carefully about and reflect on the comments made by the hon. Gentleman. I understand that a great deal of effort has gone into ensuring that wherever possible the legislation before us is consistent with the different pieces of legislation covering different areas of discrimination, whether employment or race relations.
Many propositions in the clauses that we have discussed today are transposed from other legislation from other areas, so if the hon. Gentleman is raising a potential contradiction, I should need to study it carefully. However, I understand that in order to be practical, all provisions have been brought together as comprehensively as possible. I promise the hon. Gentleman that I shall consider his point carefully. 
A second difficulty and complexity that the hon. Gentleman adds is that the belief or view must be strongly held. How would anybody assess whether the view was strongly held? 
Most interestingly of all, the third complexity is that, in the example I gave, the view must be held by a significant number of Christians. How many Christians should one have to consult? Those that belonged to that particular church, the whole diocese, the rest of the country, the global Church? There is no definition of how one should assess what is a significant number of Christians. 
Keeping the provision as a test of causing offence makes matters clear and simple, makes them work in practice and, again, helps to strike the balance between principle and practicality.

Dominic Grieve: How would the provision work in practice? Presumably, the test is entirely subjective, so if a religious organisation says, ''If this were to happen, it would cause us offence,'' that is the end of it. Or, could somebody say, ''That is not true. We don't think you really would be offended; that's just a pretext''?

Paul Goggins: That would be the end of it. If a group claimed that offence would be caused, that would be its justification for not hiring out the hall. As with all such matters, they are—[Interruption.] I will give way.

Evan Harris: I apologise for muttering from a sedentary position. I shall repeat what I said: how is that different from a simple test of expediency? Clearly, it is a different non-test, but it is a non-test.

Paul Goggins: It is a very clear and subjective test. If something gives offence to somebody, the test is their judgment about its impact on them, their beliefs and their attitudes. That is a clear test. The tests that the hon. Gentleman suggests mean that we should have to conduct a theological test about whether something conflicts specifically with Christian beliefs; and there is another test about the strength of the belief and how many people hold it.
Although I do not deny that the hon. Gentleman's intentions are honourable, by trying to define the precise point at which we draw the line and strike a balance, his definition and way of tackling the matter would add complexity to groups that are not geared up to deal with complexity. That is the point. If we were discussing major global institutions that have the capacity to deal with such things, that would be fine. However, we are often discussing small groups that provide services to local communities and groups. We have to respect that. Although we want to bear down on discrimination wherever it is, we have to respect the practical nature of some organisations. 
The wording that the hon. Member for Beaconsfield has asked the Committee to consider in amendment No. 128 would add complexity by its reference to principles and practices. Amendment No. 129 refers to conforming to the religion or belief of people connected to the institution. Again, that would add complexity and could muddy the waters somewhat. The wording of that amendment is unclear particularly because in the case of many institutions the religion or beliefs of some of the people connected to them are different from those of the institution. The existing words make it explicitly clear that the religion or belief of the institution is the key element, not that of any  person connected with it. I realise that there are different views and that we are teasing out the issue together, but the settled position currently reflected in the Bill makes the test simple, straightforward and practical. That test honours the principles that we are defending as well as the practicality of making the measure work.

Roger Gale: I have created a difficult situation for myself. Mr. Grieve, if you wish to respond although your amendments have not been moved, you had better speak now or not speak.

Dominic Grieve: The Minister has persuaded me that the wording as it stands is right, and I am grateful to him for doing so.

Evan Harris: The Minister has persuaded me that I was right to question his wording. I am sorry to move apart from the hon. Member for Beaconsfield, although I suspect that that will not be surprising. I will explain why to the Minister on the basis of his arguments. Religion is not absent from his words, and so a court will have to make a decision on whether an offence is on the grounds of religion or belief. Both he and I realise that although everyone dealing with this legislation—and with religious hatred legislation, sexual orientation and religious employment regulations' exemptions for religious organisations—always says that the last thing we want is for courts to consult theological sources, that is inevitable when it comes to these exemptions. It is in his wording, and to argue that the same may occur with mine is not a good argument.
Secondly, all the Minister's complaints about the courts having to interpret strongly held religious convictions of a significant number are contained in the employment equality regulations on both sexual orientation and religion. I remember that that was in subsection (7) and that a judicial review, which I supported, felt that that went beyond the exemption in the directive that required the regulations to be brought under section 2 of the European Communities Act 1972. The Government scraped through. The courts have already considered the matter and have commented, and there is therefore case law from the High Court. The Minister's arguments are not strong as they apply to the wording. 
I am grateful that the Minister said that he will consider what appears again to be a lack of consistency. Later, the employment regulations will be amended in clause 76. I have tabled an amendment that will point out another area where they are not aligned. 
The fundamental problem is that the Government seem to have substituted a test of expediency that is completely subjective with another subjective test of someone being offended. It is subject to the same criticism as we would have about a case where someone felt offended by a Bible in the hospital bedside cabinet, forcing local authorities to go round removing them. It is the same problem. We do not accept such cases, which might apply to small providers, and we should not accept the subjective failure to test the basis for the discrimination. 
I understand that some of those organisations are small and would rather not change those of their practices that happen to be discriminatory, but that is not a good argument for not legislating. However, one could not describe some of those organisations as small. For instance, the Church of England and the Catholic Church are large organisations. 
Finally, I urge the Minister to reflect before Report on the huge difference that exists between not allowing discrimination in race, particularly on such a subjective test—it would offend me to have to ''not discriminate'', yet a weak test is defendable particularly when, as he said, there is a large read-across between faith and race in other parts of the Bill—and other sorts of discrimination. I do not think that it is right to have such a weak test. 
This is the first time that I have been less happy after hearing the Minister's usually emollient words than when moving the amendment. I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn.

Evan Harris: I beg to move amendment No. 35, in clause 56, page 36, line 44, at end insert—
'(5A) Nothing in this section shall make it lawful for an organisation to which this section applies, and which performs a public function, to act contrary to the provisions of section 51 (1) in the performance of that function unless in so doing it is acting under, and in accordance with, a requirement of a contract with a public authority to perform that function.'.

Roger Gale: With this it will be convenient to discuss amendment No. 36, in clause 57, page 37, line 17, at end insert—
'(2A) Nothing in this section shall make it lawful for a person to whom this section applies, and who performs a public function, to act contrary to the provisions of section 51 (1) in the performance of that function unless in so doing he is acting under, and in accordance with, a requirement of a contract with a public authority to perform that function.'.

Evan Harris: I shall try to be quick. The amendments deal with religious organisations performing public functions. I am grateful to the British Humanist Association for its help, and for the efforts of Baroness Turner of Camden and Baroness Whitaker, who spoke in another place in Committee and on Report respectively. They tried to do something about the problem.
Religious organisations and charities as defined in clauses 56(1) and 75(1) are exempted from the duty not to discriminate in certain circumstances. However, such organisations and charities may be carrying out functions of a public nature. For example, they may be providing statutory or other services under contract from a local authority or the NHS. In such circumstances, they should be exempted from the general law, and clarification is needed on whether they will be allowed to discriminate in the performance of such functions. 
Amendments were tabled in the other place that would have added new subsections after clauses 56(5) and 57(2). They were similar to my amendments. Ministers in the other place made a fair point in response to the amendments; they said that organisations will sometimes be requested to do  something that is discriminatory in effect, such as outreach work for the health service with Muslim women. That is fully understood. That is why the amendments have been revised. They are important, given the Government's policy of encouraging the religion-based provision of public services—a subject for a separate debate. Certainly there will be legitimate occasions when such public functions are carried out by religious organisations. 
The amendments meet the objection correctly made in another place by Baroness Scotland. I hope that the Minister will look kindly on them, because I am concerned that when such bodies act as a public authority they could discriminate. The Minister will be aware that the Human Rights Act duty to secure non-discrimination in the enjoyment of convention rights requires that organisations behaving as a public authority should be careful in that respect. 
I hope that the Minister can offer me some comfort, because mine is a genuine attempt to get the wording of an amendment right in response to concerns raised in the other place.

Paul Goggins: I appreciate that the hon. Gentleman's efforts are always a genuine attempt to improve the wording of legislation—from his perspective. This is an important matter. As we increasingly have a mixed economy of public service provision by private sector, voluntary sector and public sector organisations, this becomes an important issue. Current case law, most notably the Leonard Cheshire case, suggests that faith groups and others that are used to deliver public services will not generally fall within the definition of public authorities in the Bill. It is unlikely, therefore, that faith groups that might make use of the exemptions in clauses 56 and 57 would at present be considered to be public authorities for the purposes of clause 51. Therefore, the amendments may seem unnecessary. However, Ministers in the other place and elsewhere have made it clear that we regret the narrow interpretation of public authority given in the Leonard Cheshire case. The Government believe that the term ''public authority'', as used in section 6 of the Human Rights Act, should cover third-party bodies in broader circumstances than those suggested by that case.
A number of processes are at play here. There is the development of case law, which I have just outlined, and the discrimination law review, which will consider this and other matters. I hope that, through that and the Bill, the position will become clearer. We would expect core public authorities that fund services provided by faith groups to ensure that all who have equal need have equal access to one provider or another. In the majority of cases, that will involve faith groups providing services on a non-discriminatory basis to all those who require such a service. That is how most faith groups would in any event wish to run their activities. They do not want to make use of the exemptions in clauses 56 and 57 because they want to provide services to everyone and not restrict them to people of the same faith. 
There are, however, cases where a public authority may wish to use a particular faith group to deliver services that will be discriminatory. For example, a  local authority that provides a general meals-on-wheels service may wish to use a Jewish or Muslim group to provide a specific service that meets the dietary requirements of Jews and Muslims. The faith group would be discriminating and would be covered by the exemptions of clauses 56 and 57, but the local authority would not be discriminating, because it would be meeting equally the needs of everyone in the community, regardless of their religion or belief, by providing a wider meals on wheels service to ensure that everybody who needed it received it. Therefore, while contractual requirements are a valuable control, it would not be right to limit the exemptions in these clauses entirely to them. 
I hope that I have been able to offer some reassurance to the hon. Member for Oxford, West and Abingdon. The situation is to some degree fluid. Case law is developing and there is the discrimination law review. We also have powers in the Bill to vary some of the exceptions as we learn from experience and as further developments take place, but I think that at present the balance is correct.

Evan Harris: I am grateful to the Minister for those remarks. He is right that there was the judgment in the Leonard Cheshire case, which was disappointing. I do not think that it was from the Supreme Court, so there is still hope that it will be overtaken by other case law, but otherwise the Government will act. I asked the old Joint Committee on Human Rights what it wanted to do about the problem. In its report it made four suggestions, none of which it was entirely happy with, but there is still agreement that the problem needs to be tackled.
The Leonard Cheshire case showed that the danger existed that there would be discrimination even in what should be perceived as public functions, so the amendments play in an important area. I understood the Minister's specific concern that the contractual provision of the amendment might be too narrow, as it does not take in the wider context of policy from the public authority that is contracting the services, and I shall go away and think about that. I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn. 
Clause 56 ordered to stand part of the Bill. 
Clauses 57 and 58 ordered to stand part of the Bill.

Clause 59 - Membership requirement

Question proposed, That the clause stand part of the Bill.

Evan Harris: I tabled an amendment to omit the clause to remind myself that I wished to have a stand part debate, and it worked, so I am learning. It is taken eight years.
The clause was added in the House of Lords—I read the debates with interest—to allow scouts and guides to continue discriminating against atheists by requiring a promise professing adherence to God or gods. That practice not only excludes the non-religious, such as humanists, but also Jains, most Buddhists and all those belonging to non-theistic  religions. It would appear that children with those beliefs are to be welcomed by these organisations if they are willing to pretend that they have a theistic religious faith. We have all done that, to a certain extent, if we consider our past behaviour. I speak for myself. In order not to get beaten up there are a number of things that people do at school. However, children who consciously adopt a non-religious or humanistic life-stance are rejected and turned away. The same rule applies to scout leaders. Atheists are automatically rejected, as are, with somewhat more reason, people such as sex offenders. 
It is offensive and unjustified—although there is no right not to be offended—for the organisations in question to reject people who would otherwise do a good job on the basis of their lack of belief in God. They are not religious organisations in the strictest sense; they just have a membership test that requires, for historical reasons, this so-called promise to be made. 
The Minister will be aware of the case read out in the House of Lords, which I will not repeat. I have had representations along those lines from someone who was rejected as a scout leader because he refused to lie when encouraged by the leadership to say, ''Just say it and then we'll forget about it and it'll never come up again.'' When he said that he was unwilling to state that he believed in God, he was told that he could not be a scout leader, because it was appropriate that the spiritual dimension of the scouts was looked after by this particular person. 
The Bill as it originally stood would have addressed that long-standing injustice, but it has been removed by a Government amendment that was carefully worded to embrace what the British Humanist Association called hypocrisy encouraged by scouts and guides, in that under the clause organisations do not require their members to have religious faith, but only to make a statement asserting or implying membership or acceptance. Hypocrisy is a hard word, but one can see the British Humanist Association's point. 
Sitting suspended for a Division in the House. 
On resuming—

Evan Harris: I was just explaining that the British Humanist Association felt that by allowing the promise to continue to be required, the clause encourages people just to say the words when they do not mean them. Hypocrisy is a hard word, but people who are excluded because of the promise, or whose children are excluded, feel strongly. I have some sympathy with them when they point out that if the organisations or the Government want such an approach to continue, it is not an admirable moral education for young people.
The Scout Association and Guide Association profess to be for everyone. I have great admiration for those organisations. I did that sort of thing when I was even younger than I am now, and I thoroughly enjoyed it and know many people who do so and who  make a valuable contribution to the community. However, even if they are excellent organisations, it is important to ensure that they are as inclusive as possible. The Scout Association, in its annual report this year 
''underlined our commitment to make Scouting available to those of different faiths and beliefs.''
The vision of the Guide Association, which uses the heading ''Guiding is for everyone'', is 
''to have sufficient volunteer leaders to enable every girl and young woman to have the opportunity to join Girlguiding UK.''
Should not a law against religious discrimination force those organisations to recant a policy that is greatly at odds with their own professions of universality? Were they to restrict membership to believers, they would, arguably, rule out the 65 per cent. of 12 to 19 year-olds who answered no when asked if they regarded themselves as belonging to any particular religion in a recent survey sponsored by the Department for Education and Skills, titled ''Young People in Britain: The Attitudes and Experiences of 12 to 19 Year Olds''. 
In some areas, scouts and guides are the only provider of youth activities apart from churches and other religious organisations. We often debate the need for more youth activities, but permitting scouts and guides to continue to discriminate against the non-religious and those who are not prepared to say something that they do not mean would deprive significant numbers of young people of the benefits of organised youth activities, leaving them with few alternatives to simply hanging out with their friends, which can, we know, lead to antisocial behaviour. The time limitation in subsection (2) is an implicit admission by the Government that the exception is not justified by some great principle. They have simply conceded the amendment to two powerful organisations. 
My final point is that the scouts and guides are not simply private membership organisations; they receive public money for their work. When people receive public money, there has to be good justification for their not being inclusive. For example, the Scout Association receives an annual capitation grant from the Ministry of Defence to fund the sea scouts. The guides also received a Government grant in 2004, and local groups receive significant funding from local authorities every year. In 2004–05, scouts and guides groups received local authority funding in Shetland, Hertsmere, Stratford, east Dorset, Hampshire, Bromley, Midlothian, Surrey and north Somerset to name but a few places. That information, says the British Humanist Association, can be found by a simple search on the internet. 
The fundamental point is that the Government were right to resist the proposal when it was made in the Lords. It is regrettable that an alternative way was not found to persuade valuable organisations that do good work against having a faith promise limited to monotheism or theism, not just religion generally, or against any such discrimination, given that the organisations say that people do not really have to  believe, but just have to say the words to go with the flow. 
That sort of thing is inappropriate, and one would have hoped that the Bill would deal with it rather than providing a loophole that spoils the whole thrust behind what it seeks to achieve. The clause is not necessary. The Scouts and Guides would not crumble if they did not have the ability to discriminate on the basis of a religious pledge. I hope that the Minister can find some justification for the clause that is based on principle, not expediency.

Dominic Grieve: I disagree completely. Organisations exist because people are happy to conform to their ways. The hon. Gentleman will find that in France the scout movement—I am not sure about the guides—is split in two. One part is religiously based and the other based on secular principles. That is presumably a response to the desires of people in France. If people want to set up a youth organisation on secular principles, it is open to them to do so. It would be quite wrong if a charity that fulfilled all the criteria for a charitable purpose were to be subject to a restriction eliminating a pledge to God as an element of its membership. That would turn it into a nationalised organisation, which it is not.

Evan Harris: I know that the hon. Gentleman is not suggesting that this would be legitimate, but I hope that he will accept that his argument echoes those put forward by the golf clubs that told my parents that if the Jews wanted to belong to a golf club, they could go to their own. Indeed, golf clubs were set up to meet that demand. I do not think, and I am sure that the hon. Gentleman does not, that because that possibility will always be available to people in a market for private pursuits, we should accept that it is inevitable.

Dominic Grieve: A golf club exists for the purpose of playing golf—at least, it usually does—whereas youth organisations such as the scouts and the guides exist for the purposes of personal development along the lines of the pledge that they ask people to make when they join. If young people, or their parents or organisers, want to set up another organisation along similar lines that does not require such a pledge, it is open to them to do so. I am grateful to the Government for their response on that point.

Paul Goggins: As the hon. Member for Oxford, West and Abingdon has already indicated, clause 59 protects charities that may not have a religious purpose stated within their charitable instrument, but which require members to assert their adherence to or acceptance of a religion or belief. The most obvious example is the one that he used, of the scouts or guides. I shall, I am sure you will be pleased to hear, Mr. Gale, spare the Committee recollections of my time in the scouts.
In relation to the scouts and guides, the question is not about a specific religion, but about a general belief in a supreme being or beings. Both charities require their members to make a promise to do their duty to God. Members are permitted to tailor their promise to their own religion, such as referring to ''Allah'' or ''gods'' rather than to ''God''. In the example given by the hon. Gentleman, a Jewish person would be able to  join the scouts because he or she would understand the promise in their own terms. 
It is important to give such protection to well established organisations that provide a wonderful support service for young people. It is also important—I hope that this offers the hon. Gentleman some reassurance—that we do not allow it to become a loophole through which new, emerging organisations can get round their obligations under the legislation. We have imposed a restriction on the exception, making it available only for charities that first introduced the requirement of the statement asserting religion or belief before 18 May 2005. That appears in the Bill, and we believe that it will protect reputable and valuable charities, such as the scouts and guides, while preventing misuse of the exception by charities that might wish to discriminate against one or more religious groups by introducing the requirement of a statement and then claiming protection under clause 59.

Evan Harris: Will the Minister give way?

Paul Goggins: I had precisely three words to say before the hon. Gentleman intervened.

Evan Harris: This may be the last intervention today. Is the Minister saying that charities are being protected from the need to change their pledges? Their viability is not threatened by the legislation, unless he is assuming that they will be wholly flooded by atheists, humanists and agnostics, even though their purpose is not to do with religion. When he says that the clause is intended to protect those organisations, what are they being protected from? Is it still worth institutionalising the discrimination that I have described, against one group of believers? He talked about Muslims, Allah and Jews and so on but left out those people caught under the legislation who have a belief that just happens to be a non-religious one?

Paul Goggins: I contend that it is not for the state to determine what the promise made by the scouts and guides should be. They are well established organisations, and people understand the promise. Individual people may have their own decision to take—the hon. Gentleman referred to one or two examples—but there is no way that the legislation should be allowed to destroy or distort the valuable work that organisations such as the scouts and guides do.

Evan Harris: Destroy?

Paul Goggins: I used the word ''destroy''. The hon. Member for Beaconsfield explained what happened in France and pointed out the repercussions that could happen here were we to be divisive in the way that the hon. Member for Oxford, West and Abingdon is hinting at. I acknowledge that he comes to the issue with good intentions, but I believe that he is wrong. I agree with the hon. Member for Beaconsfield that it is important not to undermine the working of those organisations or others—we have concentrated on scouts and guides, but there may be others, which must have had a promise within their arrangements prior to the date specified, which is 18 May 2005. I hope that the hon. Gentleman will accept that explanation.

Evan Harris: The problem with the Minister's reply is the same as the problem with the answer to the hon. Member for Beaconsfield. None of the arguments that he adduced could not also be used in different circumstances when it comes to race relations legislation. Organisations could say that they had always had a race bar, and that that is the way that they work. I am not saying that that is a comparable offence, although it is an offence to those who are discriminated against, but the answer given in those cases was that organisations would not be so badly damaged by having to comply with legislation on discrimination, because the Government believe that not discriminating, particularly against children, is a legitimate thing for us to be interested in. I am sorry that I have not got the support of the Minister and the hon. Member for Beaconsfield, but I think that I speak for the many people who will wonder why this clause, which is practically ad personam in terms of organisation, has been added. However, I do not intend to divide the Committee.
Question put and agreed to. 
Clause 59 ordered to stand part of the Bill. 
Clauses 60 and 61 ordered to stand part of the Bill.

Clause 62 - National security

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I should like the Minister to clarify how the national security let-out will work in practice. This ties in with clause 70, which sets out a procedure for national security issues to be raised during court proceedings on the intervention of the Attorney-General. Am I to infer that it will be necessary for the Government to show that a national security angle justifies the discrimination, or will the Secretary of State simply need to provide a certificate saying that national security applies and that is the end of it?

Paul Goggins: I will need to write to the hon. Gentleman to specify the precise circumstances in which a Minister would sign the document and the extent to which it would be a matter for the court, acting on advice from officials representing the institutions of national security. If there is in fact no difference between those two things, I shall want to make that clear in my letter.
Earlier, we touched on the point that national security cannot be compromised. Even where an element of discrimination might be inherent in an activity, national security must take precedence. We have sought to make that clear in clauses 62 and 70, as well as in other clauses debated today. 
As we are touching on clause 70, it may be appropriate to say that it provides for rules of court to enable the court hearing proceedings under this part of the Bill to exclude a claimant or his representatives from the court. Of course, there would be proper judicial support for that individual, who would be able to make a statement prior to the proceedings. The clause also provides for the Attorney-General or the Advocate-General for Scotland to appoint a lawyer to  represent the claimant's interests in such cases. There is therefore considerable judicial support for that individual, albeit that it is necessary at times to exclude them from the proceedings.

Dominic Grieve: One reason why I was wondering about that was that if the Secretary of State's certificate provides a national security defence or opt-out, why do we need clause 70 at all? Presumably, a case with a national security angle will never get into court in the first place. I wanted a bit of clarification on that. I can infer that a national security angle might suddenly emerge in a case and that the court might need to go into camera or to keep the claimant out. Seeing that the Government have given themselves extensive powers to provide for a national security opt-out, however, it would be helpful if the Minister could set out in his letter exactly how he expects the provisions to operate in practice.

Paul Goggins: I will certainly be happy to provide that information. I suspect that the level of detail involved will require a letter, and I shall write to the hon. Gentleman and copy my letter to the Committee.
Question put and agreed to. 
Clause 62 ordered to stand part of the Bill.

Clause 63 - Amendment of exceptions

Question proposed, That the clause stand part of the Bill.

Evan Harris: I referred to the clause when we discussed the Government's order-making power in relation to repealing or creating exceptions. Is there not an inconsistency given that an earlier amendment to clause 63 was not simultaneously made to clause 49(3)? Clause 63 was amended to prevent the Secretary of State from repealing by order an exception under this part, but clause 49(3) still contains the power to
''repeal an exception in subsection (1) or (2)''.
Of course, they might relate to different things. Clause 63(1) says: 
''The Secretary of State may by order amend this Part so as to . . . create an exception to a prohibition under section 51(1)'',
and that is clearly different from clause 49. However, clause 63(1)(b) relates to varying 
''an exception to a prohibition under this Part.''
The reason why there is no provision in clause 49(3) to vary an exception may be that that is dealt with by the wider coverage of clause 63(1)(b). I raise that in case the Minister can respond now, which would save time dealing with correspondence.

Paul Goggins: I can add nothing to what I said earlier. I was fearful—I am not looking at the officials—when I was about to say that I would write to the hon. Gentleman, but my recollection from earlier is that I have already promised to write to him on this issue, so there will be just one letter rather than two, but I will clarify the matter. 
Question put and agreed to. 
Clause 63 ordered to stand part of the Bill. 
Clauses 64 to 72 ordered to stand part of the Bill.

Clause 73 - Employers' and principals' liability

Dominic Grieve: I beg to move amendment No. 132, in clause 73, page 43, line 9, leave out subsection (2).
The clause provides for employers' and principals' liability where the default and the discrimination are in fact carried out by their employee or agent. However, subsection (4) states: 
''In proceedings under this Part against a person in respect of an act alleged to have been done by his employee it shall be a defence for the employer to provide that he took such steps as were reasonably practicable to prevent the employee from . . . doing the act, or . . . from doing acts of that kind in the course of his employment.''
That is in respect of an employee. I was somewhat surprised to see that no such provision or defence is provided for in the case of the acts of an agent. I am drawing the Committee's attention to that by seeking to delete subsection (2), which would altogether remove the responsibility of a principal for the acts of an agent. 
To give the Minister an obvious example, let us say that I employ a letting agent to let a property that I own. He is apparently a reputable letting agent operating in the locality. Unknown to me, however, he is in fact a religious bigot who dislikes the idea of people of minority faiths coming into the area, so, in operating the letting policy, he tries his best to ensure that people of minority faiths are deterred from applying by being surly and unpleasant to them. If they do get a letting, he tries—unknown to me, because I am the principal—to respond very slowly to any request that they make and is generally unpleasant to them. 
If those matters are completely outside my knowledge—that will often be the case, as the Minister will realise simply by applying his mind to it—is it right that the principal should be saddled with the default of his agent? There is an easy way to cure the problem, which is to provide for a similar protection to that provided for employers in respect of employees, but the Government have not done that. In the absence of such provision, I am very unhappy about clause 73(2).

Paul Goggins: In direct answer to the hon. Gentleman's question, no, it is not right that a person who benefits from the unlawful actions of their agent should be able to escape entirely. The intentions expressed are the same as those expressed in section 32 of the Race Relations Act 1976. However, the different wording seems to us, potentially at least, to raise questions about whether the effect is exactly the same. The hon. Gentleman has made a good point that requires further reflection. We will reflect on it further and, if clarification is required, we will bring that forward at a subsequent stage.

Dominic Grieve: I am grateful to hear that from the Minister. Part of the problem is that what is an agent is variable. An agent can be someone with whom one has  a close relationship or who is operating on behalf of an individual. Alternatively, the relationship may be quite distant. I would not want people to be unfairly penalised or even saddled with a claim when they had acted with complete propriety and the agent's actions were outside the scope of the agency agreement. If the Minister responds positively, I will be very grateful. I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn. 
Clause 73 ordered to stand part of the Bill. 
Clauses 74 to 79 ordered to stand part of the Bill. 
Further consideration adjourned.—[Mr. Dhanda.] 
Adjourned accordingly at five minutes past Seven o'clock till Thursday 8 December at five minutes to Nine o'clock.